Research On Certain Issues Auction In Mandatory Executive Procedure

This thesis concerns mandatory executive auction. More and more attention is paid to the mandatory executive auction in the court executive procedures but legal regulations on mandatory executive auction are far behind theoretic researches in our country. I make research about the definition and features of mandatory executive auction, the implementation of auction, the solution of mortgage and property transference in real estate auction, legal obligations and so on in view of foreign legislation and my working experience, so that theoretic law circles will pay attention to this issue to instruct judicatory implementation and it is especially significant to the legislation of mandatory execution. There are four parts in this thesis.The first part gives a brief account of the definition and features of mandatory executive auction. First, it accounts its definition. Auction includes arbitrary auction and mandatory auction. Auction in mandatory executive procedures is different from common auction. It is a kind of mandatory auction, that is, the court sells the confiscated property of debtor to those who offers the highest in form of open biding to pay the executive debt when it is overdue, whereas common auction is a form of transaction of selling goods or property to the highest bidder in form of open bidding in auction law and business activities of the auction enterprises. Second, it concerns the features of mandatory executive auction. This thesis proposes three theories of mandatory executive auction features, that is, private law theory, public law theory and eclectic theory in view of relevant theories by scholars of foreign legislation and Taiwan. Private law theory considers mandatory executive auction as private law act, a kind of transaction. Public law considers it as public law act executed according to public law. Eclectic theory is the compromise between private law theory and public law theory and considers it embodied double features in nature, that is, on one hand, the mandatory punishment of public law and on the other hand, the transaction feature and results of private law. Because mandatory executive auction is the act based on national public rights, I prefer public theory.The second part gives a brief account of the procedures of mandatory executive auction. At present, there is a lack of relevant legal regulations on the implementation of mandatory executive auction in our country, so it is necessary to learn from foreign legislation for research so that there are regulations for the court to follow in the mandatory auction in executive procedures. The thesis proposes concrete procedures in mandatory auction based on foreign legal regulations and my working experience. First, it is about the preparatory procedures in mandatory executive auction. Before the court carries out mandatory auction, it should entrust evaluation organ to make an evaluation of auction bid, ensure the base price and bail, the date of auction, inform litigant to be present and issue auction announcement. Then it is concerns the implementation procedures of mandatory executive auction. It expounds the main part of the implementation of mandatory executive auction, how to end an auction in the implementation and the solution when there is no bidder. According to the legal regulations in our country, the auctions that the court mandatory executes are all entrust to enterprises, presided by auction personnel of the auction enterprises. It make a comparison between enterprises and the court as the main part of the implementation of mandatory executive auction and elaborates the viewpoint that it is better for the court to preside the auction. The definition of the top price of the auctioned property in the executive procedures concerns the degree of debt fulfillment of the cash debtor so it is necessary to carry out certain procedures before the auction ends. If nobody offers a bid, it can be re-auctioned or returns to debtor. The third part gives a brief account of the solution of the responsibilities for...